Medical malpractice suits are usually filed in a state trial court, unless the case involves federal funding, a military medical facility, or or a Veteran’s Administration facility: then it would be filed in a federal district court. A claim may also be filed in a federal court if the parties involved are from different states, or if there was an accused violation of a fundamental constitutional right.
The fundamental elements of litigated medical malpractice are, above all, duty and negligence. Historic efforts define these two elements were muddled - fourteenth-century law under Henry V held that the physician owed a duty of care to the patient because medicine was a “common calling” (a profession), and required physicians to exercise care and prudence. Those in other professions who did not practice a "common calling” were liable only if an express promise had been made to achieve or avoid a certain result. In the absence of such a promise, the professional could not be held liable. Physicians, then, were held to a separate standard because of the nature of their profession. Modern notions of negligence are parallel to what history called the “carelessness” of early physicians. The notion of duty was legally elucidated in British common law. Carelessness and neglect were not in and of themselves causes of action lest the practitioner by nature of their profession had a duty to the person to whom they rendered care. The law determined that medical professionals were legally bound by a duty of care to their patients. Negligence was thereby grounds for legal action. The establishment of duty and negligence laid the foundation for Anglo-American legislation of medical malpractice.
Birth injury is a difficult area of malpractice law to pursue due to the complex nature of the medical records. The award-winning birth injury attorneys at Reiter & Walsh ABC Law Centers have decades of joint experience with birth injury, hypoxic-ischemic encephalopathy (HIE), and cerebral palsy cases. To find out if you have a case, contact our firm to speak with one of our lawyers. We have numerous multi-million dollar verdicts and settlements that attest to our success, and no fees are ever paid to our firm until we win your case. We give personal attention to each child and family we help, and are available 24/7 to speak with you.
The concept of medical responsibility can be traced back to the Code of Hammurabi, which is an extensive legal document from ancient Mesopotamia. The Code of Hammurabi states that, “If the doctor has treated a gentlemen with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands” (Smith 1931 as cited within Bal 2009). Of course, penalties for malpractice in most modern, developed nations are much more civilized. However, the Code of Hammurabi introduced the concept of holding medical professionals accountable for deaths or injuries that could have reasonably been prevented.
A large number of medical malpractice lawsuits stem from the misdiagnosis or delayed diagnosis of a medical condition, illness, or injury. When a doctor's diagnosis error leads to incorrect treatment, delayed treatment, or no treatment at all, a patient's condition can be made much worse, and they may even die. That being said, a mistake in diagnosis by itself is not enough to sustain a medical malpractice lawsuit.
For help on choosing a good medical malpractice attorney, read Nolo's article Finding a Personal Injury Lawyer . Or, you can go straight to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with medical malpractice claims).
State sovereign immunity does not extend to cases where a plaintiff alleges the state's action is in violation of the federal or state constitution. In Department of Revenue v. Kuhnlein, the Florida Department of Revenue claimed that sovereign immunity prevented plaintiffs from bringing a case that alleged that a tax violated the Commerce Clause and, furthermore, that if the tax was unconstitutional, the refund request could not be given because it did not comply with state statutes for tax refunds. The Florida Supreme Court rejected those arguments, stating: "Sovereign immunity does not exempt the State from a challenge based on violation of the federal or state constitutions, because any other rule self-evidently would make constitutional law subservient to the State's will. Moreover, neither the common law nor a state statute can supersede a provision of the federal or state constitutions."[15]

It is also important that you answer all our questions fully and truthfully, as any missing or incorrect information given could severely reduce the chances of winning the case or securing the maximum compensation. It is also worth noting that there is a time limit of three years which applies to clinical negligence claims. We will discuss this with you during our initial telephone call to determine the best we can whether you are within time to bring the claim.


What are the early signs of pregnancy? Some people may know they are pregnant soon after they have conceived. Others may not be so sure, as signs of early pregnancy can be very similar to premenstrual ones. Missing a period is the most significant symptom, but there are other ways to tell if you might be pregnant. This article looks at 12 early signs. Read now
People have a tendency to downplay their injuries because they do not want to be seen by others as complaining or needy. In fact, those that are more severely injured tend to downplay their injuries the most. Before you are convinced that your injuries don’t warrant some type of compensation, it is best to be examined by an independent medical expert. You may be entitled to lost wages, medical expenses, or compensation for pain and suffering.
In order to prove medical negligence, one must show that their doctor deviated from the accepted level of medical care that could have been reasonably expected from a physician. Deviations that may support a medical malpractice claim include: surgical errors; medication errors; infections from hospitals; delayed diagnosis of cancer; cerebral palsy; paralysis; pulmonary embolus; spinal cord injury; strokes, heart attacks; brain injury; breast cancer; birth injury; tools, sponges, towels or objects left behind in your body after surgery; surgery on the wrong site; treatment without your informed consent; being given the wrong medication or the wrong dose; being treated with unsterile equipment; or a misdiagnosis or failure to diagnose a serious condition.
Again – so what? Do you really want to be going to a doctor that injured you and caused you pain and suffering? There are much better options out there. You found this doctor. You’ll find another one. There are numerous resources available to help you find a new, more competent physician. A simple Google search of “find doctor New York” will yield a multitude of websites designed to do just that. If you have health insurance, contact your insurance company. They can usually provide you with a list of doctors in your area that are covered by your plan. Also, don’t under-estimate the value of your friends and family as a helpful resource regardless of whether or not you have insurance. Talk to them to find out what doctors with whom they entrust their health. In no time at all, you will be sure to find the right doctor for you.
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There are a number of different ways that improper delay in the provision of medical care could result in harm to a patient -- the delay may have made your condition worse, it may have negated the possibility that certain treatment could be administered, it could have blunted the effectiveness of a certain treatment method, or it could have unnecessarily prolonged or intensified your pain and discomfort.

That’s impossible. A reputable personal injury attorney will not charge you for an initial consultation. Michaels & Smolak will give you a free consultation. If we decide to represent you, we will charge you on a contingency fee basis, which is usually 1/3 of the net recovery we obtain for you, whether from a settlement or from a jury. Since the initial consultation is free, why wait? Contact us today for a free consultation.
Of course, these questions get even more murky when talking about the legal system of a foreign country. Some nations may not recognize rights to sue by foreigners. Others may bog down in administrative red tape far thicker than anything found in an American court. Some estimate cases for malpractice brought in foreign nations could take 20 years or more to resolve. Worse yet, some nations may try to transfer jurisdiction back to the United States and the US may refuse to accept it, creating a legal back and forth leaving the parties in limbo.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Dr. Bruce G Fagel and associates main offices are in Beverly Hills and Orange County California. All other addresses are local offices available for meetings and depositions.
Have you filed your Standard Form 95? Did you fill it out correctly? Often, we have veterans and service members or their families that call us after they have filed their own Form 95. Many times, we must file amended Form 95s to correct legal, medical, or other errors that are made. Some times, we must tell these individuals that we cannot help them due to a fatal error in filing their Form 95 that cannot be corrected under the law.
So, the lawyer sues the doctor. The doctor being sued has malpractice insurance (most states won’t allow you to practice without it). So the insurance company pays for a lawyer to defend the doctor, as well as an expert witness to evaluate the case and attest that there was no malpractice. Notice that the patient’s lawyer still hasn’t spent any money. The doctor’s insurance company has spent a lot of money on expert witnesses and lawyers.

What if a patient feels mistreated after the completion of therapy? Example: patient seeks contact with therapist after some new issues surfaced and being told he can't contact therapist because it would create a vortex in space-time which would subsequently swallow the entire universe (or something...) Threatening a person recovering from anxiety with law suit for trying to contact therapist seems heavy handed in the case when patient is just trying to find a solution and understand what's happening.
According to the act, when the patient arrives at the ER or urgent care center, the hospital must determine whether the patient’s condition constitutes an emergency. If it does, the hospital must make all reasonable efforts to stabilize the patient. If a hospital fails to comply with the act, the patient may sue the hospital for both the monetary equivalent of the harm caused by the failure, and for an additional penalty of up to $50,000.

Have you complied with your statute of limitations? Sometimes we have to tell veterans and service members that we cannot help them because they did not contact us soon enough. If you have a medical malpractice claim against an Army, Navy, or Air Force military hospital, you should contact us as soon as possible because your statute of limitations runs out.

While most people think of medical malpractice claims only in terms of the clear errors, like amputating the wrong leg, or dropping a junior mint into someone’s body during surgery, it is generally much more nuanced. When a doctor fails to make an appropriate diagnosis, prescribes the wrong medication, or fails to communicate important information, malpractice claims may be possible in these situations as well.
Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment -- this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure (in a way that the doctor should have warned could happen). (To learn more, read Nolo's article Medical Malpractice: Informed Consent.)
It is also important that you answer all our questions fully and truthfully, as any missing or incorrect information given could severely reduce the chances of winning the case or securing the maximum compensation. It is also worth noting that there is a time limit of three years which applies to clinical negligence claims. We will discuss this with you during our initial telephone call to determine the best we can whether you are within time to bring the claim.
In this case a surgeon was sued by his patient following complications from a laparoscopic cholecystectomy (gall bladder removal). Before the procedure he explained the risks of the surgery to her, and she also asked him questions about his experience and success rate with the procedure. She asked additional questions about whether he had ever been sued for malpractice or had any action taken against his medical license. He answered no to both questions and added that he had an almost perfect success rate with the surgery. Well, bad things happened. The patient suffered a perforated intestine and an infection. She later found out that the doctor had lost a patient during this same procedure, and that he was disciplined for the board as a result of that case.

An award for pain and suffering is not obtainable unless your injuries reach at least 15% of a most extreme case.  There is, however, no set way of measuring what 15% of a most extreme case looks like so every injured person must be individually assessed by the Judge and a percentage decided.  The maximum award for pain and suffering is about $612,500.00 and is indexed each year to keep pace with inflation.
The injury resulted in significant damages - Medical malpractice lawsuits are extremely expensive to litigate, frequently requiring testimony of numerous medical experts and countless hours of deposition testimony. For a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To pursue a medical malpractice claim, the patient must show that the injury resulted in disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.
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County and municipal officials, when sued in their official capacity, can only be sued for prospective relief under Federal law.[19] Under state law, however, the Court in Pennhurst noted that even without immunity, suits against municipal officials relate to an institution run and funded by the state, and any relief against county or municipal officials that has some significant effect on the state treasury must be considered a suit against the state, and barred under the doctrine of sovereign immunity.


The medical community, however, continued to fight for widespread tort reform among the states, and at the national level. They cited insurance increases in the late 1990s and early 2000s, which put further pressure on doctors' and hospitals' earnings—earnings that had been shrinking under Managed Care. Some areas of medicine were particularly hard hit. In New York and Florida, for example, obstetricians, gynecologists, and surgeons—the doctors who are sued the most frequently—pay more than $100,000 a year for $1 million in coverage.
This means that if an employee or other individual under the direction of the employer acted in a negligent manner, the employer is responsible for the injuries that resulted. Generally, nurses, medical technicians and paramedics are the direct employees of the hospital. If the hospital employee was performing a job-related function when the patient was injured, the patient can usually sue the hospital for the employee’s mistake.
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Similar to the errors in treatment discussed above, pharmaceutical errors can constitute medical negligence if the errors are in violation of the standard of care. If you’ve watched television long enough to reach a commercial break, you’ve likely seen commercials for prescription drugs that end with a litany of potentially dangerous side effects. When prescribed and used as directed, the benefits of use are thought to outweigh the potential dangers. But if your physician prescribes an inappropriate drug to treat your condition -- whether misdiagnosed or diagnosed correctly -- he or she has violated the standard of care and committed an act of negligence.
However, an attorney may be able to help you file a law suit against the negligent physician.  When seeking your legal expert, the single most important factor is the attorney’s reputation.  If you hire an attorney that is notorious for settling claims for less than they’re worth, you are less likely to receive the money you deserve.  For more information on attorneys and the legal processes involved in medical malpractice law suits, please read our article Medical Malpractice and the Legal Process
When the provincial health insurance plans were first created in the 1960’s and 1970’s, the federal government paid for about half of the provincial plans’ costs.  This percentage fell by more than half in the 1990’s, but has gone back up somewhat in recent years.[4]  The provincial contributions to the plans are also mostly from general revenues.  However, the largest province, Ontario, and a couple of other provinces also impose a levy on employers to help pay for their programs.
There is a statute of limitations (or time limit in which you can file a lawsuit) for medical malpractice cases. This limit varies from state to state, but in general it is about two years from when the injury occurred. To ensure you file a claim before the statute of limitations is up, you should reach out to a medical malpractice attorney as soon after you realize doctor error occurred.

Among the leading causes of medical misdiagnosis is a failure to communicate diagnostic test results. Communication of a diagnosis is arguably as important as the diagnosis itself. Patients deserve to know the results of the medical tests they receive in a timely manner. Test results should also be communicated from the lab or testing facility to the medical providers responsible for the patient’s treatment.
Many states limit the amount a plaintiff can recover in a medical malpractice lawsuit. For example, subjective damages like “pain and suffering” might be capped at $250,000. In a state with that kind of cap, you wouldn’t be able to recover more than $250,000 plus any medical expenses, lost wages and other “concrete” damages caused by the malpractice.
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